Ayer selectmen refuse records release despite state order, suit

By Mary E. Arata, marata@nashobapub.com

Posted:
09/24/2012 12:07:07 PM EDT

AYER - On July 11, the Supervisor of Records for Massachusetts ordered every Ayer town employee, town appointee and town elected official into mandatory public records law training. Despite that unusual town-wide order, a lawsuit was filed against the selectmen on Sept. 13 for failing, in large part, to follow an order issued by the Supervisor of Records on Aug. 14.

Ayer Treasurer Stephanie Gintner filed suit in Middlesex Superior Court earlier this month after being denied copies of emails sent and received from Assistant Treasurer Melisa Doig's town-issued email account (mdoig@ayer.ma.us). It was one of several document requests dating back to February which were either denied or not properly complied with by the selectmen.

Gintner is represented by attorney Daniel Gelb, who has represented her in the multi-month struggle with the selectmen over a compliant Doig lodged against Gintner last Sept. On July 23 and on a split 3-2 vote, the selectmen censured Gintner, though the board has no authority over the separately elected Treasurer. Gintner has steadfastly denied Doig's allegation that Gintner deleted Doig's emails while Doig vacationed in Aug. 2011.

--"ALL ELECTRONIC COMMUNICATIONS"

On Feb. 3, Gelb requested of town counsel David Jenkins copies of all electronic communications (emails, text/instant messages) to and from several town-issued email accounts. The requested time frame was Jan.

In early 2010, Luca, who is Ayer's postmaster, was a candidate for the Treasurer's post. He withdrew several weeks before Election Day. When he was a candidate, Luca announced he intended to hold both the full time Postal Service and the full time Treasurer posts if elected.

Luca has since come to support the idea of a selectmen-appointed, instead of an elected, Treasurer. The notion failed to gather traction at May's Annual Town Meeting. The selectmen propose placing the idea before voters again at the Oct. 22 Fall Town Meeting.

On March 5, Gelb narrowed the timeframe on email copies to two windows: June 1, 2010 through Dec. 31, 2010, and from July 1, 2011 through Sept. 30, 2011. Gelb also asked to have the applicable town computers "forensically mirrored and escrowed by a professional digital forensics vendor."

On March 14, Jenkins answered by providing a stack of only hard copy printed emails for Gabree, Luca, Doig, Conley and Pontbriand. Jenkins indicated the town was still trying to determine whether or not emails from and to Fay, McCreary and Maxant were "retrievable."

On May 16, Gelb again requested an electronic copy of Doig's emails. Gelb also requested digital images of both Doig's and Luca's "town-issued and personal computers and email boxes that have been used in the course of their employment and are subject to disclosure pursuant to Massachusetts public records law."

On May 29, Jenkins responded that he "double checked" and confirmed that the town had earlier provided all of Doig emails in hard copy. Jenkins also purportedly rejected the request for electronic copies of emails and computer imaging. "The position of the Town is that it has complied with all aspects of the public document statutes and declines your invitation for further testing."

On June 1, Gelb appealed to the Secretary of State's Supervisor of Records. Gelb noted his client's right to electronically stored information (ESI) under the law. Gelb explained that Gintner wanted the ESI access because she believed the data would "expose ulterior political and occupational motives driving complaints lodged against her by certain individual town employees."

At this point in time, the selectmen's multi-month investigation into Doig's earlier email-deletion complaint raged on behind closed doors. Minutes for those meetings have not yet been released by the selectmen.

"Ms. Gintner has a good faith basis to believe the Town of Ayer is in the possession of ESI that will vindicate her professional reputation, and that the content should be classified as publically available ESI" pursuant to state law, said Gelb. Gelb argued that the board's refusal "formally denied Ms. Gintner's ability to access - or even forensically preserve - ESI that is the subject of her public records request."

Jenkins answered on July 17. "While I do not want to appear in any way to be an obstructionist, I do not see what the purpose of a further meeting would be," wrote Jenkins. "Put simply, we have produced the documents that we have, and we know of no law which would permit the Office of the Secretary of State to order the electronic surveillance requested by Mr. Gelb's client."

"Ms. Gintner does not wish to conduct 'surveillance," answered Gelb on July 18. Rather, Gelb asserted that Gintner has the right under the law to review records in their "native format."

"It would be dangerous precedent - as well as ill founded" to suggest that hard copies are one and the same as electronic document trails, especially with respect to ESI created on a daily basis by local and state government across the Commonwealth of Massachusetts," wrote Gelb.

The state agreed.

On Aug. 14, Supervisor of Records Shawn Williams ordered the Ayer Board of Selectmen to provide copies of all email communication associated with Doig's account within ten days. In the alternative the town was to answer as to why any such email record was exempt from disclosure under state law.

Williams agreed that hard copies of Doig's emails should have been printed directly from Doig's email account - not forwarded to and printed from the email account of IT Coordinator Cindy Knox. And Williams agreed that an electronic file request must be honored.

A public record is "broadly defined to include all documentary materials or data, regardless of physical form or characteristics," noted Williams. "Consequently, email is subject to the disclosure, retention, and maintenance provisions as required by law. Public records and any non-exempt, segregable portions thereof, are subject to mandatory disclosure upon request."

"It is the finding of this office that the Town has not met its burden in responding to Attorney Gelb's request for copies of records from the Account," wrote Williams. Failure to comply could lead to a lawsuit, warned Williams.

In the meantime, Gelb has launched a second records request on July 24, requesting copies of emails sent and received from the personal email accounts for Luca (Hotmail), Fay (Comcast) and Doig (Aol) Gelb asserted the personal accounts had been used "for purposes relating to the business of the Town of Ayer."

Gelb sought emails from the personal accounts through two time frames: June 1, 2010 through Dec. 31, 2010 and July 1, 2011 through Sept. 30, 2011. The second period coincides with Doig's Aug. 2011 vacation and Sept. 2011 complaint against Gintner.

Through Friday, Sept. 21, Gelb confirms that no additional records concerning the ESI have been received by his office. Suit was filed on Sept. 13.

--AYER FACES STATE-MANDATED RECORDS TRAINING

Meanwhile, and relating to the separate matter that sparked the town-wide public records law training, a date has yet to be finalized for the workshop to be led by the Secretary of State's Office. It's unclear if such a sweeping, town-wide order has ever been issued before. Nashoba Publishing received no request when asking that question of the Secretary of State's Office on Aug. 22.

One complication has been how to keep town operations running if each and every town official and employee is in the same room for the mandatory training session at the same time, as had been proposed. Others wondered if the session will ultimately fall during the work day, posing an inconvenience for officials with day jobs. The selectmen pondered what the cost, in terms of labor, the mandatory training would cost the town.

The town-wide order follows a revelation by four-term selectman Jim Fay that he habitually deleted emails from his personal Comcast email account which, at that time, he used nearly-exclusively to conduct town business. Fay presently serves as the board chairman.

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